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As California police, prisons and crime labs get ready to collect several times the normal number of DNA samples in the next few years—as required by a recently approved ballot initiative—criminal defense lawyers are bracing for some challenges of their own. Issues ranging from how long a DNA sample can be used by law enforcement to concern over the competency of crime labs that test such samples are now high on defense counsel’s agenda. Also, the American Civil Liberties Union (ACLU) said it is preparing to challenge the new initiative in court this week. Proposition 69 was approved by 62% of California voters in November, with the enthusiastic backing of Governor Arnold Schwarzenegger, the attorney general and most of law enforcement. The initiative expands DNA collection from adult felons convicted of murder, attempted murder or sex crimes, to anyone-juvenile or adult-arrested for any felony in the state by 2009. Steps in the next four years include immediate collection of samples from people already convicted of lesser felonies-about 120,000 of the 160,000 felons now in state prison, and tens of thousands more on parole or probation. The state attorney general’s office, which oversees the Bureau of Forensic Services, expects the number of DNA samples it will handle to jump from 60,000 a year to 400,000 a year for the next five years. California now has just more than 200,000 samples in the 10-year-old database it shares with the Federal Bureau of Investigation. But as Election Day recedes into history, another fight is warming up. “We will be announcing the filing of a lawsuit [this week],” said Maya Harris of the ACLU of Northern California. “We opposed the ballot initiative because it went too far and created a potential for the invasion of people’s privacy.” Meanwhile, law enforcement agencies and the local and state crime labs are ramping up to collect far more samples than they have in the past. “The big workload will be in the next three years,” said Dave LaBahn, executive director of the California District Attorneys Association, which championed the ballot initiative. “We need not to swamp the labs, and we have to get the kits, get the swabs and get the information processed and into our computers and to the FBI.” The state crime labs will handle the crush with a $7 million loan from the state Legislature to start, and an anticipated $20 million to $25 million in new court fees created by the initiative. The money will be used to hire 70 new technicians for a lab that processed 60,000 samples last year. While the ACLU remains mum on the grounds for the suit, its spokespeople fought the ballot initiative, saying it went too far in pinpointing anyone arrested for a felony. The number of people arrested for felonies and those actually charged and convicted of felonies are very different, opponents said. Louisiana is the only other state that tests everyone arrested on suspicion of a felony. The ACLU also observed before the election that the DNA information may not be protected from other government uses or even from review by private parties, such as insurance companies. San Diego County Public Defender Steven Carroll said practicing criminal defense lawyers’ concerns for his client will be different from the ACLU’s. “The ACLU issues will be privacy,” Carroll said. “The courts can read the necessary protections into it, to keep the information out the hands of insurance companies and off the Internet, for example.” Criminal defense attorneys will have practical issues to deal with, he said. “We will file motions to suppress [DNA evidence] just as we would in any other question or if they had probable cause,” he said. “For example, a defendant whose DNA was obtained in an auto theft that wasn’t charged, then [law enforcement] uses it two years later to arrest him on another charge, you ask if that DNA was lawfully obtained. “I expect we will run those questions up until the Supreme Court and appellate courts give us a clear set of rules on when DNA can be taken and when it can be used.” Carroll said he also expects that public defenders’ offices will file motions for the return of DNA samples if people are acquitted or if they plead guilty to misdemeanors after they were arrested for felonies. “We will have to figure out how to be sure it has been returned if the person has been cleared,” he said. Carroll added that what worries him the most is the possibility of lab mistakes that mix up samples. “With the rush to gather so much DNA at once, I think a bigger risk is using people with inadequate experience or failing to safeguard the chain of custody for samples,” he said. “We can sort that out easily, and I expect we will by asking for a retest of DNA in some cases.” Los Angeles Deputy District Attorney Lisa Kahn, who co-wrote the ballot initiative, said it contains the answers to both privacy and Fourth Amendment concerns. “If the felony charges are dismissed or never made, the sample will be expunged from the system,” she said. “We envisioned that there would be people who qualified for expungement and we built that into the initiative.” Kahn said she expects the initiative to withstand challenges on privacy issues as well. “The data is so protected, it’s bulletproof,” she said. “And it contains no genetic information-it’s junk DNA, just a bunch of numbers that, at most, identify the person’s gender.”

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